Sunday, January 27, 2013

Madison's Notes, and Gun Regulations

A friend on Facebook asked me:

Doug, I'm going over Madisons notes, and August 23, 1787 it reads: "Mr. KING added, to his former explanation that arming meant not only to provide for uniformity of arms, but included [4] authority to regulate the modes of furnishing, either by the Militia themselves, the State Governments, or the National Treasury: that laws for disciplining, must involve penalties and every thing necessary for enforcing penalties."
My question is regarding the National Treasury, which seems to fall under the executive branch. When Mr. King talks about "authority to regulate the modes of furnishing, either by....National Treasury, it suggests that the President may have the power to regulate firearms. Unless it would suggest that he can regulate the militia? I'm a bit confused on that.

National Treasury in reality falls under [the legislature] as per Article I, Section 7 - the executive cannot spend the money unless it has been apportioned by the House.

Regulate, remember, meant "to put in good order." That is the second definition in the 1828 Webster's dictionary. Control and restrict was the last definition. To understand the reasoning, think about the history of the militia. During the American Revolution the members of the various militias were not in good order. Some didn't even have shoes. The muskets were often of different sizes, and there was no standard when it came to guns, so repair was near impossible, as well as the sharing of ammunition. The federal government, by being given the right to regulate the militias, was tasked with making sure the militia was in good order so that it may function as a fighting force, not a hodge-podge of a bunch of riflemen.

Understand, also, that with the Constitution we now have a standing army, so why would they keep the militias around, and why would the militias be important regarding the second amendment? "being necessary to the security of a free State." That is a "free State" - a free New York, a free Virginia, a free Massachusetts, etc. If keeping and bearing arms is "necessary" for the security of the States, but an army exists to repel invasion by foreign armies, then one must ask of whom was it necessary to provide security from? I believe the language was used to remind us that the purpose of the second amendment was because it was necessary to the security of a free State against a tyrannical federal government. Therefore, if gun rights are for protection against the federal government, why would the federal government have the authority to restrict those same firearms?

Also, consider that the Second Amendment was not necessary. The Tenth Amendment was already an understood concept before the Bill of Rights. All powers not granted to the federal government, and not prohibited to the States, are "reserved" to the States. The word "reserved" was used because those powers were already State powers. Nowhere in the first seven articles of the Constitution is the authority to regulate firearms given to the federal government (and remember the commerce clause was only for the federal government to settle disputes between the States, not an excuse for control and restrictions), and there is no place in the Constitution that prohibits the States from regulating firearms, therefore the federal government has "no authority to restrict firearms in any way" through federal legislation, or unconstitutional executive actions.

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